Section .0100 ‑ Equal Employment Opportunity Plans And Programs

Link to law: http://reports.oah.state.nc.us/ncac/title 25 - state human resources/chapter 01 - office of state human resources/subchapter l/subchapter l rules.html
Published: 2015

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SUBCHAPTER 1L ‑ EQUAL OPPORTUNITY

 

SECTION .0100 ‑ EQUAL EMPLOYMENT OPPORTUNITY PLANS AND

PROGRAMS

 

25 NCAC 01L .0101          DUTIES OF SECTION

The Office of State Personnel shall develop

and administer a program to ensure that employees are provided with equal employment

opportunities at all occupational levels.

 

History Note:        Authority G.S. 126‑4; 126‑16;

126-19;

Eff. October 1, 1977;

Amended Eff. December 2, 1995; November 1, 1987.

 

 

25 NCAC 01L .0102          PURPOSE

(a)  Agencies and universities of the State of North

Carolina shall provide all current employees and applicants for state

employment with equal employment opportunities, without discrimination on the

basis of race, color, religion, national origin, sex, age, genetic information,

or disabling condition as defined by G.S. 168A or disability as defined by the

Americans With Disabilities Act, as amended.  All personnel policies, practices

and programs shall be administered and implemented in a non-discriminatory

manner by all state agencies and universities.

(b)  Each agency and university shall adopt and implement an

equal employment opportunity plan in order to:

(1)           assure that all personnel policies and

practices relevant to total employment in state government will guarantee and

preserve equal employment opportunities for all applicants and employees; and

(2)           assure diversity of the state's workforce at

all occupational levels.

 

History Note:        Authority G.S. 95-28.1A; 126-4(10); 126-16;

126-19; P.L. 110-233; 122 Stat. 881;

Eff. October 1, 1977;

Amended Eff. May 1, 2012; December 2, 1995; November 1,

1987; October 1, 1984.

 

25 NCAC 01L .0103          PROGRAM IMPLEMENTATION: STATE LEVEL

(a)  The Office of State Personnel shall

develop and implement a State Equal Employment Opportunity Plan to promote

equal employment opportunity to include, but not be limited to, a policy

statement and the following elements:

(1)           recruitment,

(2)           disciplinary processes,

(3)           selection processes,

(4)           hiring,

(5)           promotion,

(6)           training,

(7)           compensation and benefits,

(8)           performance appraisal,

(9)           reduction‑in‑force,

(10)         harassment prevention,

(11)         evaluation mechanism,

(12)         reporting mechanism,

(13)         transfer or separation, and

(14)         grievance procedures.

(b)  The Office of State Personnel shall

provide:

(1)           technical assistance,

training, oversight, monitoring, evaluation, and support programs to each state

agency and university.

(2)           develop systems to review,

analyze and evaluate trends regarding all personnel policies affecting the

elements in the State EEO Plan.

 

History Note:        Authority G.S. 126‑4(10); 126‑16;

126-19;

Eff. October 1, 1977;

Amended Eff. December 2, 1995; October 1, 1984.

 

 

 

25 ncac 01l .0104          PROGRAM IMPLEMENTATION:  AGENCY AND

UNIVERSITY LEVEL

(a)  Each state agency head and University Chancellor shall

develop and implement an agency or university equal employment opportunity

program and plan.

(b)  Each state agency and university shall submit a plan by

March 1 of each year to the Office of State Personnel for review, technical

assistance and approval by the Director of State Personnel.  The Plan and program

shall be approved if they comply with the requirements in this Rule.

(c)  Each state agency's and university's equal employment

opportunity plan and program shall include the following elements:

(1)           The State EEO policy and an EEO policy

statement applicable to the agency or university. The policy shall:

(A)          commit the agency or university to equal employment opportunity;

(B)          prohibit discrimination and provide equal employment

opportunity to applicants and employees without regard to race, color, national

origin, religion, creed, sex, age, the genetic information, or disability;

(C)          list applicable laws, regulations and guidelines

pertaining to EEO compliance including Title VII of the Civil Rights Act of

1964, as amended; the Equal Pay Act of 1963; the Age Discrimination in

Employment Act of 1968, as amended; Executive Order 11246, as amended; the

Rehabilitation Act of 1973; the Civil Rights Restoration Act of 1988; the Americans

with Disabilities Act of 1990, as amended; the Civil Rights Act of 1991; Genetic

Information Nondiscrimination Act of 2008; G.S. 126-16; as amended; and other

state EEO and anti-discrimination laws or statutes;

(D)          prohibit retaliatory actions against employees who

file a complaint or charge of employment discrimination, testify, assist or

participate in any manner in a hearing, proceeding or investigation of

employment discrimination;

(E)           commit the agency or university to

non-discriminatory practices in recruitment, selection, hiring, promotion,

compensation, performance appraisal, disciplinary and grievance procedures,

separations, and reduction in force;

(F)           describe provisions for providing reasonable

accommodation for persons with disabilities;

(G)          prevent harassment, including sexual harassment;

(H)          describe the accountability of agency head or

chancellor, managers, supervisors and others for EEO compliance;

(I)            provide for monitoring and evaluating the plan and

program effectiveness; and

(J)            include the signature of the agency head or the

chancellor and date;

(2)           The assignment of responsibility and

accountability.  The assignment of responsibility and accountability shall

describe the responsibilities of the following:

(A)          The agency head's or the university chancellor's

responsibilities shall include:

(i)            the appointing or designating of a

management-level official responsible to oversee the EEO program;

(ii)           communication of agency or university

commitment to EEO policies, plans, and procedures to all employees, applicants

and the general public;

(iii)          providing necessary resources to ensure the

successful implementation of the EEO program; and

(iv)          ensuring the development and implementation of

policies, procedures, and programs necessary to achieve a workforce in each

occupational category that reflects the N.C. State working population as

defined by U.S. Census data.

(B)          The managers' and  supervisors' responsibilities

shall include:

(i)            assisting in the development and implementation

of the EEO plan and program and establishing program objectives;

(ii)           maintaining a diverse workforce for the

department, division, work unit, or section;

(iii)          assisting the EEO officer in periodic

evaluations to determine the effectiveness of the EEO program; and

(iv)          providing a work environment and management practices

which support equal opportunity in all terms and conditions of employment.

(C)          The EEO Officer(s) responsibilities shall include: 

(i)            the interpreting and applying of Federal laws,

state statutes, policy regulations and guidelines related to discrimination in

employment and equal opportunity;

(ii)           reviewing hiring recommendations for compliance

with EEO program objectives prior to the final agency or university hiring

decision;

(iii)          maintaining and analyzing workforce utilization

data for development of the equal employment plan and program in conjunction

with management;

(iv)          maintaining and analyzing data on employment

practices to monitor and evaluate the effectiveness of the EEO program and to make

recommendations on improvements;

(v)           advising management of the program's impact and

effectiveness on workforce demographics at all occupational levels;

(vi)          providing or coordinating EEO training for

management and employees;

(vii)         providing confidential counseling or

consultation for management and employees in matters involving EEO concerns or

complaints alleging discrimination (formally, informally and within agency or

university guidelines);

(viii)        establishing and maintaining effective working

relations with groups concerned with equal employment opportunity;

(ix)          coordinating programs (internally or in

cooperation with State Personnel) to achieve program objectives and to provide

for management and employee input and assistance in program development and

implementation; and

(x)           presenting information on the EEO plan and

program to management and employees on a regular basis.

(D)          The EEO Committee responsibilities shall include:

(i)            serving as a communication link between

managers and employees and the EEO staff on aspects of the EEO plan and program;



(ii)           reviewing and evaluating the equal employment

opportunity plan and program;

(iii)          reviewing workforce representation data in each

occupational category;

(iv)          surveying the organizational climate and employee

attitudes and evaluating the resultant data;

(v)           meeting with the agency head or university

chancellor in conjunction with the EEO Officer to discuss EEO programs, report

on the employees' concerns, and recommend changes or additions to the EEO

policy, plan, or program; and

(vi)          identifying recruitment resources and other

activities designed to strengthen the EEO program; meeting as a committee at

least quarterly.

(3)           The dissemination procedures.  These

procedures shall include methods for communicating the commitment, intent, and

provisions of the EEO plan and program to employees and the general public.

(4)           The workforce analysis.  This analysis

shall be used to examine the representation of each demographic group within

each occupational category using one of the following three bases for comparison:

(A)          the N.C. working populations (ages 18-64) as

established by the U.S. Census. The statewide N.C. working population shall be

used for the officials and administrators, management related and professional

occupational categories; and the geographical recruiting area working

population shall be used for the other occupational categories;

(B)          the two factor analysis as defined by the Office of

Federal Contract Compliance Programs (OFCCP) regulations; or

(C)          the N.C. Occupational specific civilian labor force

and N.C. working population (18-64) compromise  standard, as established by the

State Personnel Commission.  The occupation specific labor force of each

demographic group and the working population by each demographic group shall be

compared to the agency or university workforce. An average of the

underutilization resulting from the comparisons of the two criteria shall be

used to determine the workforce underutilitzation by occupational category for

each demographic group.  When calculating the underutilization resulting from

the occupation specific/working population comparison, the statewide working

population and the statewide occupational specific category compromise numbers

shall be used for analyzing the officials and administrators, management

related and the professional occupational categories.  When calculating the

underutilization resulting from the occupation specific/working population

comparison, the working population in the local geographical recruiting area

and the occupation specific category compromise numbers in the local

geographical recruiting area may be used for analyzing the other occupational

categories. Only one basis or criteria for comparison shall be selected for use

by an agency head or university chancellor.  The analysis shall identify each

occupational category in which groups are underutilized, (defined as having

fewer employees in a demographic group in a particular occupational category

than would be expected based on the selected basis or criteria for comparison). 

The analysis shall also assess the agency's or university's workforce needs and

capability for addressing the identified underutilization;

(5)           The program objectives.  These objectives

shall establish strategies targeted at eliminating or reducing any

underutilization identified in each occupational category;

(6)           The program activities and strategies.  These

activities and strategies shall be implemented to accomplish program

objectives.  These strategies shall include the following:

(A)          recruitment procedures to attract a diverse pool of

applicants to each occupational category;

(B)          disciplinary process designed to provide equitable

treatment for all employees in accordance with the State's discipline rules;

(C)          selection procedures designed to ensure that all of

the steps in the process are nondiscriminatory and job related;

(D)          hiring process designed to include consistent

information for new hires regarding employment conditions (e.g., type of

appointment or salary);

(E)           promotion procedures designed to enhance upward

mobility and fully utilize the skills of the existing workforce;

(F)           training procedures designed to enhance employee

development and advancement opportunities;

(G)          compensation and benefits analysis procedures

designed to review benefits, monitor salaries, analyze practices in order to

determine trends, and ensure that all employees receive compensation and

benefits without discrimination;

(H)          performance appraisal designed to hold managers and

supervisors accountable for the progress of the agency's or university's EEO program,

and to establish, maintain, and apply employee performance standards that are

free from bias;

(I)            transfer or separation analysis designed to

identify trends and to measure impact on underutilized groups;

(J)            grievance procedures to ensure fair and equitable

review of complaints in accordance with agency or university procedures and

State rules on grievance; and

(K)          a process to enroll managers and supervisors in the

Equal Employment Opportunity Institute (EEOI), an EEO educational and diversity

training program, as defined by G.S. 126-16.1;

(7)           An evaluation mechanism.  This evaluation

mechanism shall be designed to assess overall effectiveness of the equal

employment opportunity program and to determine the achievement of agency or

university EEO objectives as identified in the EEO plan and program;

(8)           A reporting mechanism.  This reporting

mechanism shall be designed to provide agency or university management, on a

regular basis throughout the year, with data on the various program activities,

workforce trends, and progress towards achievement of program objectives;

(9)           Procedures to prevent and eliminate

harassment.  These procedures shall be designed to create an environment that

is fair to all employees without regard to race, sex, age, national origin,

color, creed, religion, genetic information, or disability, as defined by G.S.

168A-3, or the American with Disabilities Act, as amended.

(10)         Reduction-in-force procedures.  These

procedures shall be designed to analyze layoff decisions and to determine their

actual or potential adverse impact on underutilized groups; and

(11)         Procedures for monitoring.  These procedures

shall establish a data management system for maintaining and analyzing data on

transactions regarding agency or university trends in compensation, promotion,

selection, recruitment, training, separations, performance appraisals, and all other

terms and conditions of employment.

(d)  Each state agency head and university chancellor shall

designate an official at the deputy secretary, assistant secretary,

vice-chancellor or assistant vice-chancellor level or an official with a direct

reporting relationship to the agency head or chancellor, to assume

responsibility for the operation and implementation of their equal opportunity

plan and program.

 

History Note:        Authority G.S. 95-28.1A; 126-4(10);

126-16; 126-19; P.L. 110-233; 122 Stat. 881;

Eff. October 1, 1977;

Amended Eff. May 1, 2012; August 1, 2002; December 2,

1995; November 1, 1988; November 1, 1987; October 1, 1984.

 

25 NCAC 01L .0105          PROGRAM PLAN REVIEW

 

History Note:        Authority G.S. 126‑4(10); 126‑16;

Eff. October 1, 1977;

Amended Eff. November 1, 1988; November 1, 1987; October

1, 1984;  October 1, 1980;

Repealed Eff. December 2, 1995.

 

 

 

25 NCAC 01L .0106          REPORTS

 

History Note:        Authority G.S. 126‑4; 126‑16;

Eff. October 1, 1978;

Repealed Eff. December 2, 1995.

 

 

 

 

SECTION .0200 ‑ ACQUIRED IMMUNE DEFICIENCY SYNDROME

(AIDS) IN THE WORKPLACE

 

25 NCAC 01L .0201          EDUCATION AND TRAINING

 

History Note:        Authority G.S. 126‑4;

Eff. November 1, 1990;

Amended Eff. March 1, 1992;

Recodified to 25 NCAC 01N .0301 Eff. December 29, 2003.

 

25 NCAC 01L .0202          BASIC EDUCATION AND TRAINING COMPONENT

 

History Note:        Authority G.S. 126‑4;

Eff. November 1, 1990;

Amended Eff. March 1, 1992; May 1, 1991;

Recodified to 25 NCAC 01N .0302 Eff. December 29, 2003.

 

25 NCAC 01L .0203          ADVANCED EDUCATION AND TRAINING

COMPONENT

 

History Note:        Authority G.S. 126‑4;

Eff. November 1, 1990;

Amended Eff. June 1, 1992; March 1, 1992; May 1, 1991;

Recodified to 25 NCAC 01N .0303 Eff. December 29, 2003.

 

25 NCAC 01L .0204          ANTI‑DISCRIMINATION

 

History Note:        Authority G.S. 126‑4; 130A‑148C(i);

168A‑3(9);

Eff. November 1, 1990;

Recodified to 25 NCAC 01N .0304 Eff. December 29, 2003.

 

25 NCAC 01L .0205          TESTING AND EXAMINATION

 

History Note:        Authority G.S. 126‑4;

Eff. November 1, 1990;

Recodified to 25 NCAC 01N .0305 Eff. December 29, 2003.

 

25 NCAC 01L .0206          CONFIDENTIALITY

 

History Note:        Authority G.S. 126‑4;

Eff. November 1, 1990;

Recodified to 25 NCAC 01N .0306 Eff. December 29, 2003.

 

25 NCAC 01L .0207          COMPLAINTS AND DISCIPLINE

 

History Note:        Authority G.S. 126‑4;

Eff. November 1, 1990;

Recodified to 25 NCAC 01N .0307 Eff. December 29, 2003.

 

SECTION .0300 ‑ EQUAL EMPLOYMENT OPPORTUNITY INSTITUTE

 

 

25 NCAC 01L .0301          RESERVED FOR FUTURE CODIFICATION

 

 

 

25 NCAC 01L .0302          PARTICIPATION AND PURPOSE

Supervisors and managers hired, promoted or appointed on or

after July 1, 1991 shall participate in the EEOI.  Supervisors and managers

appointed before July 1, 1991 are encouraged to participate in the EEOI.  Agencies,

departments and universities shall not be authorized to conduct or contract for

substitute training to replace EEOI.  The purpose of the EEOI is to:

(1)           address and discuss the history and evolution of

equal employment opportunity concepts and principles;

(2)           assist managers and supervisors in incorporating

their equal employment opportunity responsibilities with other management

responsibilities;

(3)           expose managers and supervisors to workplace equity

and fairness issues; and

(4)           review and discuss accepted management practices

for valuing and managing diversity in the workplace.

 

History Note:        Authority G.S. 126‑16.1;

Eff. January 1, 1992;

Amended Eff. November 1, 2004.

 

25 NCAC 01L .0303          RESPONSIBILITIES: AGENCIES

(a)  It is the responsibility of each state agency,

department, and university (hereafter named agency) to enroll each supervisor

or manager appointed on or after July 1, 1991 in the EEOI.  The enrollment

shall be within one year of initial appointment.

(b)  Each agency shall be responsible for providing its

prorata share of the cost for supplies and resource materials.

(c)  Agencies shall be responsible for verifying candidate

eligibility reports.

(d)  Agencies may enroll incumbent managers and supervisors

to participate in the EEOI when space is available.

(e)  Agencies may incorporate in their new employee

orientation program a module of instruction designed to familiarize new

employees with the agency's commitment to equal employment opportunity.

 

History Note:        Authority G.S. 126‑16.1;

Eff. January 1, 1992;

Amended Eff. November 1, 2004.

 

25 ncac 01L .0304           responsibilities: Managers and

supervisors

Managers and supervisors shall attend and complete the EEOI

in the prescribed time frame.

 

History Note:        Authority G.S. 126-16.1;

Eff. January 1, 1992;

Amended Eff. January 1, 2005.

25 NCAC 01L .0305          RESPONSIBILITIES: OFFICE OF STATE

PERSONNEL

 

History Note:        Authority G.S. 126‑16.1;

Eff. January 1, 1992;

Repealed Eff. January 1, 2005.

 

25 NCAC 01L .0306          ADMINISTRATION: DEFINITIONS

(a)  "Supervisory positions" are

defined as positions in which the majority of the work performed is directing

the work of other positions.  These employees have the authority to assign work

and to evaluate work; to hire employees; to discipline or dismiss employees; or

have significant input into such actions.

(b)  "Managerial positions" are

defined as positions which manage established divisions or subdivisions of a

department, agency or university.  These employees direct the work of one or

more supervisors and have the authority to hire, reward, discipline, or

discharge employees.  These employees may also provide suggestions for changes

in policy to senior executives with policy‑making authority.

(c)  "Executive managerial"

positions are defined as policy making positions.  Employees in these positions

are agency/department heads, university chancellors, deputies, assistants, vice‑chancellors,

and other policy makers.  The employees in executive managerial positions are

usually appointed or elected.  For the purposes of this policy, the definition

of supervisors, managers, and executives also includes the setting of

performance expectations, conducting performance appraisal conferences and

evaluating performance.

(d)  "Incumbent Executives, Managers and

Supervisors" are defined as executive managers and supervisors hired or

appointed into positions prior to July 1, 1991.

(e)  "EEOI Candidates" are defined

as:

(1)           Managers and supervisors

hired on or after July 1, 1991 and who may or may not have served in a

management role in state government.

(2)           Incumbent executives,

managers and supervisors hired or appointed into current positions prior to

July 1, 1991.

(3)           Incumbent executives,

managers and supervisors promoted/appointed to a different management position

on or after July 1, 1991.

(4)           Executive level managers who

are hired or appointed with or without executive level experience in state

government on or after July 1, 1991.

(f)  "Training Level 1" is defined

as the full EEOI Training designed for those managers and supervisors

identified in Subparagraph (e)(1) of this Rule.  Also, management level

employees as identified in Subparagraphs (e)(2) and (e)(3) of this Rule may

participate on a space availability basis.

(g)  "Training Level 2" is defined

as an abbreviated course designed for executive level managers as identified in

Subparagraph (e)(4) of this Rule.  Also, executive level managers as identified

in Subparagraphs (e)(2) and (e)(3) of this Rule may participate on a space

availability basis.

(h)  "Enroll," for the purposes of

this policy, shall be defined as the act of attending and completing the EEOI.

 

History Note:        Authority G.S. 126‑16.1;

Eff. January 1, 1992.

 

 

 

25 NCAC 01L .0307          COURSE SCHEDULING AND SITE SELECTIONS

 

History Note:        Authority G.S. 126‑16.1;

Eff. January 1, 1992;

Repealed Eff. November 1, 2004.

 

section .0400 – persons with a disability

 

25 NCAC 01L .0401          SPECIAL PROVISIONS

RELATIVE TO PERSONS WITH A DISABILITY

(a)  The definitions in G.S. 168A-3 apply to

this Rule.

(b)  Equal employment

opportunity for persons with a disability includes the making of a reasonable

accommodation to the known physical limitations of a qualified applicant or

employee who would be able to perform the essential duties of the job if such

accommodation is made. This may include:

(1)                

making facilities used by employees accessible to

and usable by such person;

(2)                

job restructuring (reassigning non‑essential

duties or using part‑time or modified work schedules);

(3)                

acquisition or modification of equipment or

devices;

(4)                

provision of readers or interpreters; or other

similar actions.

Agencies shall make such adjustments for the known

limitations of otherwise qualified applicants and employees with a disability

unless it can be demonstrated that a particular adjustment or alteration would

impose an undue hardship on the operation of the agency.

(c) 

Whether an accommodation is reasonable must depend on the facts in each case. 

Factors to be considered in determining this include:

(1)                

the nature and cost of the accommodation needed;

(2)                

the type of the agency's operation, including the

composition and structure of its work force; and

(3)                

the overall size of the agency or particular

program involved, with respect to number of employees, number and type of

facilities, and size of budget.

(d)  Bona Fide Occupational Qualifications:

(1)           Age, sex or physical

requirements may be considered if they constitute a bona fide occupational

qualification necessary for job performance in the normal operations of the

agency.  Whether such a requirement is a bona fide occupational qualification

shall depend on the facts in each case.  This exemption shall be construed very

narrowly and the agency shall have the burden of proving the exemption is

justified.

(2)           Physical fitness

requirements based upon preemployment physical examinations relating to minimum

standards for employment may be a reasonable employment factor, provided that

such standards are reasonably necessary for the specific work to be performed

and are uniformly and equally applied to all applicants for the particular job

category, regardless of age or sex.

(3)           A differentiation may be

based on a physical examination in job situations which necessitate stringent

physical requirements due to inherent occupational factors such as the safety

of the individual employees or of other persons in their charge, or those

occupations which by nature are particularly hazardous.  Job classifications

which require rapid reflexes or a high degree of speed, coordination, dexterity

and endurance would fall in this category.

(4)           To establish age, sex or

physical requirements as a bona fide occupational qualification, it shall be

necessary to submit a recommendation to the Office of State Personnel setting

forth all facts and justification as to why the requirement should be

considered as an employment factor in each of the classifications in question.

(e)  Special Provisions Relative to

Communicable and Infectious Diseases:

(1)           Persons with communicable or

infectious disease, including Acquired Immune Deficiency Syndrome (AIDS), are

persons with a disability if the disease results in an impairment which

substantially limits one or more major life activities.  All of the statutory

provisions relative to persons with a disability are applicable to persons with

communicable and infectious diseases, including the requirements for a reasonable

accommodation to the known limitations of an otherwise qualified applicant or

employee.

(2)           It is not discriminatory

action to fail to hire, transfer, or promote, or to discharge a person with a

disability because the person has a communicable disease which would disqualify

a person without a disability from similar employment.  However, such action

may be taken on that basis only when it has been determined necessary to

prevent the spread of the communicable or infectious disease.  There must be

documentation of consultation with private physicians and public health

officials in arriving at the determination.  Concern for other employees who

may fear working with the infected co‑worker must never be the basis for

the action, in the absence of a medically documented health hazard to other

persons.  There is no evidence that employing a person with AIDS would present

a health hazard to other persons in the usual workplace.

 

History Note:        Authority G.S. 126‑4; 126‑5(c)(1)‑(4);

126‑16; 126‑36; 168A‑5(b)(3); P.L. 92‑261;

Eff. October

1, 2004.